The Exclusionary Rule is being eliminated and nothing is being offered as a replacement for prosecutorial or police misconduct.

Editorial by LawReader Senior Editor Stan Billingsley Jan. 30, 2009

A LawReader study reveals that prosecutorial misconduct is rarely sanctioned orpunished in Kentucky. While the appellate courts frequently consider the issue, and often find that in fact the prosecutor did violate a rule or practice, the error is overlooked due to an increasingly broad interpretation of the harmless error rule.

One example is a prohibition against the prosecutor making a closing argument in which he/she makes a “send a message” argument to the jury. The Court of Appeals has strongly lectured the bar that it is improper for the prosecutor to make an argument to the effect that the jury should send a message to lawbreakers that that crime will not be tolerated in their community. The Court has said that such an argument encourages the jury to ignore the instructions and their duty to focus on the pending case, and to become crime fighters. Under such a theory the jury’s duty to be a fact finder is minimized, and their duty to be crime fighters is enlarged. That is close to allowing a committee made up of Mothers Against Drunk Driving (MADD) being appointed as jurors in all DUI cases.

The courts have not been consistent in their “send a message” rulings. One prosecutor who used this argument in 2007 was mentioned by a panel of the Court of Appeals and the verdict was reversed and sent back for a new trial, yet three months later another panel of the Court of Appeals found such an argument to be merely a Harmless Error. In a number of rulings subsequent to the one reversal, the Court of Appeals and the Ky. Supreme Court have found other “send a message” arguments to be Harmless Error.

“…prosecutors have “the responsibility to [prosecute] according to the principle that one accused of a crime is entitled to a fair and impartial trial.”

That responsibility is abused when they make arguments that appear calculated to skate as close as possible to the edge of arguments previously condemned by this Court. Such gamesmanship does not do justice, and always flirts with a fall through thin ice into the icy waters of reversal for prosecutorial misconduct.

This principle mentioned in Clarkis increasingly ignored. The LawReader study (SUPREME COURT STUDY 2007) of the Ky. Supreme Court, authored by former law school professor Martin Huelsman, suggests that theKy. Supreme Court is more cautious in applying the harmless error rule than is the Ky. Ct. of Appeals. While this rule has its rightful place, everytime this rule is used one should look at it closely to see if the rule is reasonably applied or is it just giving the prosecutor a free pass that will only encourage more bad conduct in the future by other prosecutors. While some may argue that prosecutors are advocates for the state, that argument fails to acknowledge that prosecutors have a dual role. That dual role has been cited by the courts and goes:

“A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” – - Official Commentary to SCR 3.130(3.8) Supreme Court 1989.”Some years ago I attended a seminar at the Harvard Law School on Theories of Jurisprudence. One theory that was popular in Nazi Germany was the idea that it wasn’t all that bad to convict an innocent person, since doing so would demonstrate the power of the state and scare the hell out of potential lawbreakers. That theory appears close to the “actual innocence is no defense” theory credited to Justice Scalia.

The only tool that we have every seen used against a prosecutor who has violated the rules of procedure is the Exclusionary Rule. Under this rule if evidence is improperly obtained, it cannot be used at trial of the defendant. Conservative jurists have attacked the Exclusionary Rule for the last 40 years so that today it is rarely enforced, and exceptions such as the Harmless Error rule have taken precedence. It can safely be said that the actual use of the Exclusionary Rule to suppress evidence is only applied in the most egregious cases.

Other nations rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution. These enforcement options could be used in the United States, but rarely are. We know of no instances of professional discipline of a prosecutor for violating the rules by the Kentucky Bar Association, and the structure of the Unified Prosecutorial System has never been used to sanction a prosecutor.

Since the local prosecutor is in charge of all prosecutions, there is little chance that under our current system that they will consider prosecuting themselves anytime soon.

The use of civil sanctions against a prosecutor is limited by our rules of sovereign immunity. Likewise civil suits against police officers are rarely filed, and rarely successful.

Therefore, the tools used by other nations in lieu of the Exculpatory Rule are inhibited by our judicial structure.

There are numerous cases exposed over the last decade in which prosecutors or police have falsified evidence, withheld exculpatory evidence, or threatened and intimidated witnesses to offer evidence that massages the facts to fit the Government’s case. Yet where are the sanctions imposed on the prosecutor or police official who violates the rules of the game? We have never seen a case where a prosecutor was removed from office for misconduct.

Judges who step out of line are subject to sanction by the Judicial Conduct Commission. There is no such body that reviews the conduct of prosecutors and issues sanctions.

We have seen the legislature impose more and more mandatory sentences on offenses. This has worked to allow prosecutors to pile up charges against defendants and then plea bargain them down. Any practitioner of criminal law will be able to cite instances where their clients where intimidated to plead guilty due to the piling up of charges against defendants, and even threats to prosecute the defendants friends and family members.

The cost of a criminal trial can in itself be a prosecutorial tool, and more than a few allegations of financial ruin to a defendant have been alleged against prosecutors.

These practices result in “sentencing”, being done by prosecutors and not by judges or juries.

We suggest that we now have three possible results in any criminal charge:

1. Guilty

2. Innocent

3. Plead guilty due to plea bargaining intimidation.

While the first two results give the public some reliable indication of actual guilt or innocence, the third result leaves some degree of doubt about the actual guilt of the defendant. Was the defendant actually guilty or was he protecting his family from financial ruin or prosecution? Was the defendant actually guilty or was he merely intimidated by threats of a extremely long prison sentence, and only plead guilty to minimize his risks of incarceration.

Since the Exculpatory Rule is being progressively eliminated as a tool to enforce the proper use of the rules and to protect constitutional rights, what will replace it?

We suggest that one solution is for the legislature to create a Prosecutors Conduct Commission. This legislation should require the adoption of a Code of Conduct for Prosecutors. (The Federal Courts have such a code, but most states including Kentucky do not.) Judges have a Code of Conduct, why don’t prosecutors? Such a Commission could follow the makeup of the Judicial Conduct Commission and should include prosecutors, citizen members and defense lawyers.

We forbid judges from publicly praising themselves for their lengthy sentences and their anti-crime stance. On the other hand, prosecutors are posting web sites in which they publish the pictures of people they have convicted and seek praise for all the scalps they have obtained. While a web site boasting of all the scalps earned by a prosecutor may be explained by their role as an advocate, it does great violence to their duty to also be “ministers of justice” as required by SCR 3.130(3.8).

The current direction we are taking is that prosecutorial power are increasingly overcoming constitutional rights, overcoming the rules of procedure and the rules of evidence. The long term effect of this unlimited power by prosecutors is that prosecutorial and police power are replacing judges and jury trials. Is this really where we want to go?

This problem could be alleviated by the Appellate Courts being more careful in the application of the Harmless Error rule. The Appellate Courts in practice rarely mention the name of the prosecutor who violates a rule of procedure. While this is not a solution to the problem, it is one small step that could and should be taken by the Appellate Courts. We also suggest that the Appellate Courts could refer egregious violations of defendants rights to the KBA for review.

Another step that would be dramatic, is to remove the cloak of sovereign immunity from prosecutors and police who violate the rules, withhold evidence, file charges without probable cause, or threaten financial ruin to defenses who refuse to plead.

Another step that could be adopted is to allow a process where a person who is acquitted of criminal charges can seek compensation for his legal defense expenses. This could be accomplished by allowing such compensation to be paid by the Crime Victims – Board of Claims agencys.

The following article is excerpted from New York Times article by Adam Liptak - Jan. 30, 2009

The Endangered Exculpatory Rule.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr. joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006. In applying for a job in the Reagan Justice Department in 1985, he wrote that his interest in the law had been “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure,” religious freedom and voting rights.

“With Alito’s replacement of O’Connor,” said Craig M. Bradley, a law professor at Indiana University, “suddenly now they have four votes for sure and possibly five for the elimination of the exclusionary rule.”

The four certain votes, in the opinion of Professor Bradley and other legal scholars, are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumnus of the Reagan administration.

The fate of the rule seems to turn on the views of Justice Anthony M. Kennedy, who has sent mixed signals on the question. As in so many areas of the law, there are indications that the court’s liberal and conservative wings are eagerly courting him. They are also no doubt looking for the case that, with Justice Kennedy’s vote, will settle the issue once and for all.

The United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.

Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.

The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the case — in which an Alabama man, Bennie D. Herring, was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant — was sloppy recordkeeping in a police database rather than a mistake by an officer on the scene. Since the misconduct at issue in Herring was, in the legal jargon, “attenuated from the arrest,” the decision may apply only to a limited number of cases.

But the balance of the opinion is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”

A broad reading of the decision by the lower courts, Professor Bradley said, means “the death of the exclusionary rule as a practical matter.”